Custody battle over five-year-old twins with THREE mothers: Fears for children

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Twin girls now have birth mother, an adoptive mother, a biological mother and an anonymous father

Case described by Christian Medical Fellowship as a 'disturbing harbinger'

Twin five-year-old girls who effectively have three mothers are at the centre of a fierce custody battle between the two lesbians who brought them into the world.

The children live with their birth mother but were conceived from eggs donated by her ex-partner – and later adopted by her current partner.

Under the Human Fertilisation and Embryology Act 2008, the egg donor has no legal status as a parent.

But she is fighting for a shared residence order which would allow her part-time custody of the girls – and would recognise her as a third legal guardian.

The court battle prompted warnings over informal sperm and egg donor agreements and concern over the effect on the children.

Philippa Taylor, of the Christian Medical Fellowship, said: ‘This is a disturbing harbinger of things to come. These kinds of cases will continue to rise as the number of people seeking egg and sperm donation increases.

In this situation, the mothers appear to have deliberately created a situation where the parentage of the children is malleable.

The twins now have a birth mother, an adoptive mother, a biological mother and an anonymous father, who they can have no contact with until they are 18. It is hugely confusing for the children.

‘Too many of these kinds of egg and sperm donor arrangements are done informally, with no concrete decisions made about what role the different parents will play.’

A court heard the birth mother and genetic mother had an ‘intimate relationship’ after meeting in the 1990s and continued to live together after their relationship became platonic. When one of them struggled to conceive, the other agreed to donate her eggs, which were fertilised using an anonymous sperm donor in 2007.

But when relations soured in 2012 and the genetic mother moved out, she found she was not recognised as the twins’ legal parent.

The girls continued to live with the birth mother and she later entered a civil partnership with another woman, who was subsequently made a legal parent of the twins by the courts.

In the first hearing in the custody case, at Portsmouth County Court last August, Judge Helen Black ruled in favour of the birth mother, saying the egg donor was ‘not a parent of the children and that her status should not be elevated in that way’. She raised concerns about how the egg donor ‘would operate her parental responsibility if given it’.

But she challenged the decision in the Court of Appeal, insisting she had a right to look after the twins. She argued she had raised the girls for the first few years of their lives when she was still living with the birth mother, who had returned to work.

In March, three judges upheld the appeal, claiming the initial judgment had been built on ‘wobbly’ foundations and the full evidence had not been heard.

The case will now be sent back to the county court for a fresh hearing. Lady Justice [Jill] Black, sitting at the Court of Appeal, said: ‘Childhood is over all too quickly and, whilst I appreciate that both sides think they are motivated only by concern for the children, it is still very sad to see it being allowed to slip away whilst energy is devoted to adult wrangles and to litigation.’

To further complicate the case, the genetic mother used some of the embryos that were created to conceive the twins to impregnate herself. It means her toddler daughter is a full sibling to the twins.

Mrs Taylor said that donors should be aware that they have no automatic parental rights over the child, adding: ‘More and more cases like this are coming through the courts.

‘The focus seems to be what rights the parents have rather than the children’s rights to their biological heritage.’

The number of single women opting to use IVF has more than doubled in five years, from 259 to 632 in 2012. Use of donor sperm has also become popular, with 468 women choosing that route to motherhood in 2012, according to the Human Fertilisation and Embryology Authority.

But family solicitor Marcus Malin said people were often not aware of the complex legal issues surrounding surrogacy and egg and sperm donation.

‘People must go into these kinds of agreements with their eyes wide open,’ he said.

‘If someone agrees to donate their eggs or sperm when they are not in a relationship, then it becomes an arrangement, and I think some people go into these arrangements too lightly.

‘While everybody enters into these agreements with the best intentions, many don’t fully consider how the childcare will work in practice.’

Mr Malin said sperm donors must be aware that as the biological father they could be liable for child maintenance.